Abstract

http://ssrn.com/abstract=2167741
 


 



Roberts on Obamacare: Liar, Lunatic or Legitimate?


Kenneth K. Ching


Regent University - School of Law

October 27, 2012

Journal of Law and Politics, Forthcoming

Abstract:     
When Chief Justice John Roberts issued his opinion in National Federation of Independent Business v. Sebelius, he was widely accused of being a liar. Decorum required that people not use the word “liar,” but it was implied clearly enough. Critics called his opinion “political” or “illogical.” What they meant was that he did not mean what he had said. What they meant was that he had lied. But if Roberts lied, his opinion is legally illegitimate. This article asks whether we should, in fact, believe Roberts lied.

This article argues that the evidence strongly suggests that Roberts did not lie. Neither his reputation nor the content of his opinion support the accusation. Further, this article argues that Roberts’ opinion satisfies the criteria of a legitimating legal objectivity. Although this article defends controversial aspects of Roberts’ opinion, that is not its main point. This article’s purpose is to argue against the cynical and self-defeating practice of accusing judges of playing partisan politics.

This article makes several contributions to the literature on politics and judging. It is the first to argue that not only should we refrain from assuming judicial decisions are partisan but also that we should presume judges give us truthful statements of their opinions. It applies for the first time a conception of legal objectivity known as “objectivity as publicity” to a judicial opinion. It analyzes those controversial aspects of Roberts’ opinion, concluding that not only has Roberts not lied but that he is correct in his opinion. And it also provides evidence regarding Roberts’ reputation for truthfulness. This article uses Roberts’ opinion as a case study in legitimacy and objectivity, however its analysis could be applied to other judicial opinions accused of being partisan.

Number of Pages in PDF File: 31

Keywords: Roberts, Obamacare, Scalia, Affordable Care Act, Anti-Injunction Act, Objectivity, Judging, Politics

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Date posted: October 28, 2012 ; Last revised: August 13, 2013

Suggested Citation

Ching, Kenneth K., Roberts on Obamacare: Liar, Lunatic or Legitimate? (October 27, 2012). Journal of Law and Politics, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2167741 or http://dx.doi.org/10.2139/ssrn.2167741

Contact Information

Kenneth K. Ching (Contact Author)
Regent University - School of Law ( email )
Virginia Beach, VA 23464
United States
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